Decision Date: 08/31/95 Archive Date:
09/01/95
DOCKET NO. 93-20 587 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for bilateral
tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C.A. Skow, Associate CounselREMANDThe appellant served on
active duty from March 1943 to July 1947.This matter came
before the Board of Veterans' Appeals (the Board) on appeal
from a November 1991 rating decision of the Cheyenne,
Wyoming, Department of Veterans Affairs Regional Office
(VARO). We note that the VA misplaced the appellant's
original claims folder and the medical contents were unable
to be reconstructed.
The appellant contends that he sustained bilateral hearing
loss as a result of artillery fire exposure in service. He
further contends that he developed bilateral tinnitus from
diving into water during training in service. A report of
the Surgeon General's Office confirms that he served in the
artillery during service and that he sustained combat
wounds, although treatment for an ear problem was not shown.
By rating action dated November 1991, the appellant's claim
for service connection for bilateral hearing loss with
tinnitus was denied. According to this rating decision,
VARO considered a report of the Surgeon General's Office and
treatment records of the Cheyenne, Wyoming, VA Medical
Center dated May 1977 to October 1991. However, after
careful review of the record, no copies of treatment records
from the Cheyenne, Wyoming, VA Medical Center were located
in the appellant's claims folder. We believe that these
records should be associated with the appellant's claims
folder prior to an adjudication of the claim by the Board.
Furthermore, in light of the VA's misplacement of the
appellant's original claims folder, including his service
medical records, we believe that another effort should be
made to locate the original claims folder or the materials
therein. The Board notes that the appellant's
representative has similarly requested further development
of the record, to include a search for the appellant's
claims folder and his 201 file.
In view of the foregoing, this case is REMANDED for the
following development:
1. VARO should obtain all treatment records of the
appellant from the VA Medical Center in Cheyenne, Wyoming,
since May 1977. These records must be associated with the
appellant's claims folder.
2. VARO should request the appellant's military personnel
records (201 file) and all records with the Surgeon
General's Office. VARO should also make all reasonable
efforts to locate the missing claims folder of the appellant
or to reconstruct the data. These efforts should be
documented and associated with the appellant's claims folder
along with any records obtained.
3. Thereafter, VARO should undertake adjudicatory action.
Where VARO has been unable to locate the appellant's
original claims folder or to satisfactorily reconstruct the
data, it has a heightened duty to explain its findings and
consider the benefit of doubt rule. O'Hare v. Derwinski, 1
Vet.App. 365, 367 (1991).
4. If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the appellant
and representative should be furnished a supplemental
statement of the case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
until otherwise notified.
C.P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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